The Challenge of ‘Factual Hard Cases’ for Guilty Plea Regimes

This article examines how defendant self‐conviction via guilty plea changes the application of criminal law, specifically in cases in which there is no right answer as to whether a defendant is guilty prior to trial, despite agreement over descriptive facts. These cases are referred to as ‘factual hard cases’. It suggests that defendants trying themselves in these cases creates risks for defendants and criminal justice systems – the application of law becomes driven by defendant judgement, with accompanying imprudence, vulnerability, and subjectivity, and an expressive function of the criminal trial is stifled. The results of an original empirical study are presented to demonstrate these risks. The article argues that as a result of these risks, and the decoupling of guilty pleas from ethical behaviours, factual hard cases present a challenge to existing plea‐based reduction regimes and demonstrate the need for careful thought about what guilty pleas are and why we reward them.